TANAH TUMPAHNYA DARAHKU: THE ‘GENUINE AND
EFFECTIVE LINK’ IN ESTABLISHING MALAYSIAN
CITIZENSHIP
TAN KIAN LEONG *
Article 14(1)(b) of the Federal Constitution of Malaysia, when read together with sch II pt II s
1(e), theoretically acts as a safety net for Malaysian-born persons by conferring citizenship upon
those who would otherwise be stateless. In practice, however, these provisions have been
interpreted as imposing a dual jus soli/jus sanguinis requirement that must be satisfied before
citizenship can be granted. Consequently, many persons prima facie entitled to Malaysian
citizenship by operation of law are deprived of their entitlement. This article explores the
possibility of adopting the Nottebohm (Liechtenstein v Guatemala) ‘genuine and effective link’
principle as a supplementary element of the s 1(e) citizenship test. Support for adoption is derived
from the Parliament of Malaysia’s intent throughout the history of amendments to the citizenship
provisions in the Constitution. The article further considers the plausibility of a direct legal
transplantation of the principle into Malaysian law, drawing upon various sources including
international law and English common law.
TABLE OF CONTENTS
Introduction........................................................................................................... 309
Citizenship Legislation in Malaysia and Interaction with International Law ....... 310
A Citizenship and the Constitution............................................................... 310
B The Relationship between Malaysian Domestic Law and
International Law...................................................................................... 313
The Court of Appeal on Citizenship and Statelessness......................................... 315
The ‘Genuine and Effective Link’ Principle As a Supplementary Element of the
Citizenship Test .................................................................................................... 320
Hurdles against the Adoption of the ‘Genuine and Effective Link’ Principle ...... 322
A International Law...................................................................................... 323
B English Common Law .............................................................................. 325
C Citizenship by Naturalisation ................................................................... 326
D Direct Legal Transplantation: An Impossibility? ..................................... 327
Conclusion ............................................................................................................ 328
INTRODUCTION
Article 14(1)(b) of the Federal Constitution of Malaysia (‘the Constitution’), read
together with sch II pt II s 1(e), acts as a safety net for Malaysian-born persons by
conferring citizenship upon those who would otherwise be stateless. In practice,
the courts have interpreted these provisions as imposing a dual jus soli/jus
sanguinis requirement that must be satisfied before citizenship is granted. I argue
that the existing test (i) has been applied inconsistently, resulting in legal
uncertainty and (ii) perpetuates substantive unfairness by depriving persons falling
*
Bar Vocational Studies Candidate, City, University of London; LLB (Hons), University
College London. The author would like to thank his dissertation supervisor, Kimberley Trapp
for her advice and comments on earlier versions of this article, and Matilde Masetti-Placci
and Shukri Ahmad Shahizam, without whom this article would not have been possible. Any
errors and oversights are the author’s alone.